Cooney, Howe and Murray on Understanding the New Australian Workplace Relations Act as a Scheme of Regulation

Sean Cooney (Melbourne), John Howe (Melbourne) and Jillian Murray (La Trobe) have put on SSRN their piece in the New South Wales Law Review: Time and Money Under Work Choices: Understanding the New Workplace Relations Act as a Scheme of Regulation.

Here's the asbtract:

This article is an assessment of changes to labour standard-setting in Australia brought about by the Workplace Relations (Work Choices) Act 2005 (hereafter Work Choices). We examine whether Work Choices is an example of sound regulatory practice, and whether it is likely to address the key social problems associated with work in Australia in the early twenty-first century. We conclude that it is not, and indeed is largely directed at increasing the discretionary power of employers.

Part II of the article establishes a framework for analysing Work Choices. We raise normative arguments in favour of maximising not merely work but decent work and contend that the private law of employment is, on its own, unable to deliver decent work. Public regulation of the employment relationship is also required. We then consider what modes of public regulation are most appropriate in the employment context, drawing on the now extensive literature on effective (and in particular responsive) regulation.

Part III applies this framework to Work Choices, focusing on the regulation of time and pay. The Part begins with an explanation of the ways in which Work Choices departs from the previous system of setting labour standards for decent work. We then find that Work Choices favours 'command and control' rather than responsive regulation. We further observe that although this form of regulation purports to 'guarantee' basic labour standards, it often exacerbates the problems of private law by expanding the scope of employer action.

The article concludes by suggesting that a better approach to workplace reforms, while not returning to the past, would draw on, rather than marginalise the successful elements of the previous system.

As always, looking across the world and investigating employment issues can lead to rewarding insights for our own employment laws. Check it out!

PS